Sunday, March 10, 2013

A thought for Sunday: apparently, Constitutional Amendments can't amend the Constitution. Who knew?

- by New Deal democrat

Via Linda Greenhouse of the NY Times:
Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”

These are astounding comments, bespeaking willful ignorance of the origin (as in “originalism”) of the 14th and 15th Amendments, which transformed the constitutional relationship between the federal government and the states. Their very point was to invoke federal power to make sure the states delivered on the amendments’ promises: due process, equal protection, the right to vote for all. Recall that the Constitution’s first 10 amendments, the Bill of Rights, imposed limitations only on the power of Congress; only through later Supreme Court interpretation were most of them understood to apply to the states as well. But the Reconstruction amendments were aimed directly at the states. As Justice Stephen G. Breyer put it during the argument: “And one thing to say is, of course this is aimed at states. What do you think the Civil War was about?”
I bolded the quotation from Justice Scalia for its breathtaking argument: that regardless of the specific intent of the Congress that wrote the Fifteenth Amendment, despite their specific enshrining a further Congressional right to act, due in no small amount to the disastrous judicial miserliness of Dred Scott, the Fifteenth Amendment itself cannot disturb the 1789 Framers' configuration of "sovereign powers" of the states.

What utter horseshit. The only thing that can't be changed by Amendment are states' voting rights in the Senate. Everything else in the Constitution can be changed by Amendment.

This decision is going to be more infamous than Bush v. Gore, for it is going to try to declare the 1789 Federal/State division of power inviolable, beyond even the pale of changes to the Constitution itself. Scalia's quarrel is not merely with the Voting Rights Act, it is with the Fifteenth Amendment itself, the intent of its framers be damned!